Expanded right-to-farm protections considered

The Agriculture Committee heard testimony Feb. 12 on a bill that would expand legal protections for agricultural producers under the state’s 1982 Right to Farm Act.Sen. Dan Hughes

Under the act, a farm or public grain warehouse—a grain elevator or receptacle in which grain is held for longer than 10 days—cannot be found to be a public or private nuisance if it existed before a change in the land use or occupancy of land in its locality and would not have been a nuisance before the change.

LB227, sponsored by Venango Sen. Dan Hughes, would extend that protection to a farm or public grain warehouse if there is “no significant change” in the type of operation and if the farm or warehouse has been in operation for at least one year and was not a nuisance at the time it began.

A significant change would not include the conversion of one type of farm or public grain warehouse to another; a change in ownership or size of the operation; the enrollment, reduction or cessation of participation of the farm or public grain warehouse in a government program; or the operation’s adoption of new technology.

Additionally, a farm or public grain warehouse could not be found to be a nuisance if “reasonable techniques” are used to keep dust, noise, insects and odors at a minimum and the farm or public grain warehouse complies with applicable laws and regulations, including the zoning regulations of a local governing body.

As the state’s population becomes farther removed from farm life, it grows less tolerant of the “dirty, smelly, sometimes not very pleasant” agriculture industry, Hughes said. LB227 would ensure that farmers would not be vulnerable to nuisance lawsuits as long as they operate within zoning laws and state environmental quality regulations, he said.

Jacob Mayer testified in support of the bill on behalf of a group of seven agriculture organizations. The Right to Farm Act protects producers against nuisance liability in instances when residential occupants come to a preexisting agricultural operation, he said, but courts have ruled that any change to an operation itself, no matter how minor, voids those protections.

“This gap in the law has had a deterring effect on Nebraska’s agricultural industry, stagnating growth in rural communities and stoking resentment among neighbors,” Mayer said.

Kristi Block, executive vice president of the Nebraska Grain and Feed Association, also testified in support. She said grain elevators use an array of technologies and practices to mitigate noise and dust. Expanded legal protections under LB227 would encourage public grain warehouses and other agricultural businesses to adopt new technologies that increase safety and efficiency, Block said.

Jonathan Leo, an environmental lawyer and consultant in Lincoln, testified in opposition to the bill on behalf of Nebraska Interfaith Power and Light. He said LB227 would deprive a property owner of the right to sue when a farming operation undergoes a significant change affecting an owner’s enjoyment of his or her property. The changes the bill would deem not significant seem to be the opposite, Leo added.

“In fact, I can’t imagine what could be more significant than a change in the ownership or size … of a farm or public grain warehouse,” he said.

Anthony Schutz, a professor at the Nebraska College of Law, gave neutral testimony on the bill on his own behalf. He said nuisance lawsuits act as a “backdrop” that property owners can use to protect themselves in instances when a regulatory authority cannot consider or predict a farming operation’s impact on neighbors.

Schutz said LB227 as written would make it impossible to make such a claim against an existing farming operation.